Critical race theory

Critical race theory (CRT) is an academic discipline focused upon the application of critical theory,[1][2] a critical examination of society and culture, to the intersection of race, law, and power.[1][2] Critical race theory is often associated with many of the controversial issues involved in the pursuit of equality issues related to race and ethnicity.

The movement is loosely unified by two common themes. First, CRT proposes that white supremacy and racial power are maintained over time, and in particular, that the law may play a role in this process. Second, CRT work has investigated the possibility of transforming the relationship between law and racial power, and more broadly, pursues a project of achieving racial emancipation and anti-subordination.[3]

Appearing in U.S. law schools in the mid- to late 1980s, critical race theory began as a reaction to critical legal studies.[4] Scholars such as Derrick Bell applauded the focus of civil rights scholarship on race, but were deeply critical of civil rights scholars' commitment to colorblindness and their focus on intentional discrimination, rather than a broader focus on the conditions of racial inequality.[5][6] Likewise, scholars like Patricia Williams, Kimberlé Williams Crenshaw, and Mari Matsuda embraced the focus on the reproduction of hierarchy in critical legal studies, but criticized CLS scholars for failing to focus on racial domination and on the particular sources of racial oppression.[7]

CRT recognizes that racism is engrained in the fabric and system of the American society. The individual racist need not exist to note that institutional racism is pervasive in the dominant culture. This is the analytical lens that CRT uses in examining existing power structures. CRT identifies that these power structures are based on white privilege and white supremacy, which perpetuates the marginalization of people of color.[10]

Legal scholar Roy L. Brooks has defined CRT as "a collection of critical stances against the existing legal order from a race-based point of view," and says

it focuses on the various ways in which the received tradition in law adversely affects people of color not as individuals but as a group. Thus, CRT attempts to analyze law and legal traditions through the history, contemporary experiences, and racial sensibilities of racial minorities in this country. The question always lurking in the background of CRT is this: What would the legal landscape look like today if people of color were the decision-makers?[11]

Critical race theory draws on the priorities and perspectives of both critical legal studies and conventional civil rights scholarship, while sharply contesting both of these fields. Angela Harris describes CRT as sharing "a commitment to a vision of liberation from racism through right reason" with the civil rights tradition.[12] It deconstructs some premises and arguments of legal theory and simultaneously holds that legally constructed rights are incredibly important.[12][13] As described by Derrick Bell and Angela Harris, critical race theory is committed to "radical critique of the law (which is normatively deconstructionist) and ... radical emancipation by the law (which is normatively reconstructionist)."[14]

CRT's theoretical elements are provided by a variety of sources.

Richard Delgado and Jean Stefancic have documented the following major themes as characteristic of work in critical race theory:

A critique of liberalism: CRT scholars favor a more aggressive approach to social transformation as opposed to liberalism's more cautious approach, favor a race conscious approach to transformation rather than liberalism's embrace of color blindness, and favor an approach that relies more on political organizing, in contrast to liberalism's reliance on rights-based remedies.[15]

Storytelling/counterstorytelling and "naming one's own reality"—using narrative to illuminate and explore experiences of racial oppression.[15]

Revisionist interpretations of American civil rights law and progress—criticizing civil rights scholarship and anti-discrimination law. An example is Brown v. Board of Education. Derrick Bell, one of CRT’s founders, argued that civil rights advances for blacks coincided with the self-interest of white elitist. Mary Dudziak performed extensive archival research in the US Department of State and US Department of Justice, as well as the correspondence by US ambassadors abroad. She found that passing of the laws in the US was not because people of color were discriminated against, rather it was to improve the image of the US to Third World countries that the US needed as allies during the Cold War.[15][16][17]

Applying insights from social science writing on race and racism to legal problems.[15]

The intersections theory is the examination of race, sex, class, national origin, and sexual orientation, and how their combination plays out in various settings, e.g., how the needs of a Latina female are different from those of a black male and whose needs are the ones promoted.[15][18]

Essentialism philosophy —reducing the experience of a category (gender or race) to the experience of one sub-group (white women or African-Americans). Basically, all oppressed people share the commonality of oppression. However, that oppression varies by gender, class, race, etc., so the aims and strategies will differ for each of these groups.[15][19]

The concept of structural determinism, or how "the structure of legal thought or culture influences its content," is a mode of thought or widely shared practice which determines significant social outcomes. Usually this occurs without conscious knowledge and because of this, our system cannot redress certain kinds of wrongs.[15][20]

White privilege refers to the myriad of social advantages, benefits, and courtesies that come with being a member of the dominant race, such as a clerk not following you around in a store or not having people cross the street at night to avoid you.[21]

Microaggression refers to the sudden, stunning, or dispiriting transactions that mar the days of people of color. These include small acts of racism consciously or unconsciously perpetrated and act like water dripping on a rock wearing away at it slowly. Microaggressions are based on the assumptions about racial matters that are absorbed from cultural heritage.[22]

Empathic fallacy is the belief that one can change a narrative by offering an alternative narrative in hopes that the listener’s empathy will quickly and reliably take over. Empathy is not enough to change racism as most people are not exposed to many people different from themselves and people mostly seek out information about their own culture and group.[23]

Cheryl I. Harris and Gloria J. Ladson-Billings add the theoretical element of whiteness as property. They describe whiteness as the ultimate property which whites alone can possess. It is valuable and is property. The 'property functions of whiteness'—rights to disposition, rights to use and enjoyment, reputation and status property, and the absolute right to exclude—make the American dream a more likely and attainable reality for whites as citizens. For a CRT critic, the white skin color that some Americans possess is like owning a piece of property. It grants privileges to the owner that a renter (or a person of color) would not be afforded.[24][25]

Karen Pyke documents the theoretical element of internalized racism or internalized racial oppression. The victims of racism begin to believe the ideology that they are inferior and white people and white culture are superior. The internalizing of racism is not due to any weakness, ignorance, inferiority, psychological defect, gullibility, or other shortcomings of the oppressed. Instead, it is how authority and power in all aspects of society contributes to feelings of inequality.[26]

Camara Phyllis Jones defines institutionalized racism as the structures, policies, practices, and norms resulting in differential access to the goods, services, and opportunities of society by race. Institutionalized racism is normative, sometimes legalized and often manifests as inherited disadvantage. It is structural, having been absorbed into our institutions of custom, practice and law, so there need not be an identifiable offender. Indeed, institutionalized racism is often evident as inaction in the face of need. Institutionalized racism manifests itself both in material conditions and in access to power. With regard to material conditions, examples include differential access to quality education, sound housing, gainful employment, appropriate medical facilities and a clean environment.[27]

As a movement that draws heavily from critical theory, critical race theory shares many intellectual commitments with critical legal studies, critical theory, feminist jurisprudence and postcolonial theory. Though some authors like Tommy J. Curry have pointed out that such epistemic convergences with critical legal studies, critical theory, etc. are emphasized because of the idealist turn in Critical Race Theory which is interested in discourse (how we speak about race) and the theories of white Continental philosophers, over and against the structural and institutional accounts of white supremacy which were at the heart of the realist analysis of racism introduced in Derrick Bell's early works[28] articulated through Black thinkers like W.E.B. DuBois, Paul Robeson, and Judge Robert L. Carter.[29]

Recent developments in critical race theory include work relying on updated social psychology research on unconscious bias to justify affirmative action and work relying on law and economics methodology to examine structural inequality and discrimination in the workplace.[30]

Scholars in critical race theory have focused with some particularity on the issues of hate crime and hate speech. In response to the US Supreme Court's opinion in the hate speech case of R. A. V. v. City of St. Paul (1992), in which the Court struck down an anti-bias ordinance as applied to a teenager who had burned a cross, Mari Matsuda and Charles Lawrence argued that the Court had paid insufficient attention to the history of racist speech and the actual injury produced by such speech.[31]

Critical race theorists have also paid particular attention to the issue of affirmative action. Many scholars have argued in favor of affirmative action on the argument that so-called merit standards for hiring and educational admissions are not race-neutral for a variety of reasons, and that such standards are part of the rhetoric of neutrality through which whites justify their disproportionate share of resources and social benefits.[32]

Some legal scholars have criticized CRT on a number of grounds, such as CRT scholars' reliance on narrative and storytelling, or CRT's critique of objectivity. Judge Richard Posner of the United States Seventh Circuit Court of Appeals has "label[ed] critical race theorists and postmodernists the 'lunatic core' of 'radical legal egalitarianism.'"[33] He writes,

What is most arresting about critical race theory is that...it turns its back on the Western tradition of rational inquiry, forswearing analysis for narrative. Rather than marshal logical arguments and empirical data, critical race theorists tell stories — fictional, science-fictional, quasi-fictional, autobiographical, anecdotal—designed to expose the pervasive and debilitating racism of America today. By repudiating reasoned argumentation, the storytellers reinforce stereotypes about the intellectual capacities of nonwhites.[33]

The radical multiculturalists' views raise insuperable barriers to mutual understanding. Consider the Space Traders story. How does one have a meaningful dialogue with Derrick Bell? Because his thesis is utterly untestable, one quickly reaches a dead end after either accepting or rejecting his assertion that white Americans would cheerfully sell all blacks to the aliens. The story is also a poke in the eye of American Jews, particularly those who risked life and limb by actively participating in the civil rights protests of the 1960s. Bell clearly implies that this was done out of tawdry self-interest. Perhaps most galling is Bell's insensitivity in making the symbol of Jewish hypocrisy the little girl who perished in the Holocaust—as close to a saint as Jews have. A Jewish professor who invoked the name of Rosa Parks so derisively would be bitterly condemned—and rightly so.[34]

Daniel Farber and Suzanna Sherry have argued that critical race theory, along with critical feminism and critical legal studies, has antisemitic and anti-Asian implications, has worked to undermine notions of democratic community and has impeded dialogue.[35]

Henry Louis Gates Jr. has written a critical evaluation of CRT.[36][page needed] Gates emphasizes how campus speech codes and anti-hate speech laws have been applied to anti-white speech, contrary to the intentions of CRT theorists: "During the year in which Michigan's speech code was enforced, more than twenty blacks were charged—by whites—with racist speech. As Trossen notes, not a single instance of white racist speech was punished."

Jeffrey Pyle wrote in the Boston College Law Review:

Critical race theorists attack the very foundations of the [classical] liberal legal order, including equality theory, legal reasoning, Enlightenment rationalism and neutral principles of constitutional law. These liberal values, they allege, have no enduring basis in principles, but are mere social constructs calculated to legitimate white supremacy. The rule of law, according to critical race theorists, is a false promise of principled government, and they have lost patience with false promises.[37]

In an article published in Slate, Will Oremus wrote that CRT is radical "in the sense that it questions fundamental assumptions.... And unlike some strands of academic and legal thought, critical race theory has an open and activist agenda, with an emphasis on storytelling and personal experience. It’s about righting wrongs, not just questing after knowledge" and that CRT is not "radical today in the sense of being outside the mainstream: Critical race theory is widely taught and studied."[38]

Within critical race theory, various sub-groupings have emerged to focus on issues that fall outside the black-white paradigm of race relations as well as issues that relate to the intersection of race with issues of gender, sexuality, class and other social structures. See for example, critical race feminism (CRF), Latino critical race studies (LatCrit)[40] Asian American critical race studies (AsianCrit) and American Indian critical race studies (sometimes called TribalCrit). CRT methodology and analytical framework have also been applied to the study of white immigrant groups.[41]

Critical race theory has also begun to spawn research that looks at understandings of race outside the United States.[42][43]

Critical race theory has stirred controversy since the 1980s over such issues as its deviation from the ideal of colorblindness, promotion of the use of narrative in legal studies, advocacy of "legal instrumentalism" as opposed to ideal-driven uses of the law, analysis of the Constitution and existing law as constructed according to and perpetuating racial power, and encouraging legal scholars to be partial on the side of ending racial subordination.[44]

Conservative opponents of political appointees including Lani Guinier[45] have included a general critique of critical race theory in their criticism of these figures' actions on racial issues.

In 2012, Matt de la Peña’s young adult novel Mexican WhiteBoy, about a boy who wants to grow up to become a baseball player, was banned from being taught in class[47] and the Mexican-American studies program in Tucson, Arizona, was disbanded in part because of their connection to CRT, which was seen to be in violation of a recently passed state law that "prohibits schools from offering courses that 'advocate ethnic solidarity instead of the treatment of pupils as individuals'."[48]

^Crenshaw, Kimberlé; Garry Peller (1995). Critical race theory: the key writings that formed the movement. The New Press. p. xxiv. ISBN978-1-56584-271-7. To the emerging race crits, rights discourse held a social and transformative value in the context of racial subordination that transcended the narrower question of whether reliance on rights alone could bring about any determinate results.